Opinion Number. 1860

Subject

CUSTOMSEXPORT OF FRESH FRUIT: WHETHER WHARF OWNERS MAY BE REQUIRED TO PROVIDE FACILITIES ON WHARVES FOR INSPECTION OF FRESH FRUIT INTENDED FOR EXPORT: MINISTER’S POWER TO REQUIRE ‘SHED ACCOMMODATION FOR THE PROTECTION OF GOODS’ UNDER CUSTOMS CONTROL: WHETHER ‘PROTECTION’ OF GOODS INCLUDES ‘INSPECTION’ OF GOODS: WHEN GOODS BECOME ‘SUBJECT TO THE CONTROL OF THE CUSTOMS’: MEANING OF ‘APPOINTED PLACE’: WHETHER FRESH FRUIT BROUGHT TO A WHARF FOR INSPECTION BEFORE EXPORT IS ‘BROUGHT INTO ANY PRESCRIBED PLACE FOR EXPORT’

Author
Key Legislation

CUSTOMS ACT 1901 ss 19, 30(d), 112: CUSTOMS REGULATIONS reg 23: EXPORTS (FRESH FRUIT) REGULATIONS regs 4, 6, 14, 15(1), 16, 20

Date
Client
The Secretary, Department of Commerce and Agriculture

The Secretary, Department of Commerce and Agriculture has forwarded the following memorandum for advice:

The question has arisen as to whether wharf owners can be required, under the Customs Act, to provide premises and facilities on wharves for the inspection of fresh fruit for export.

This Department exercises control over the export of fresh fruit under the Exports (Fresh Fruit) Regulations which prohibit the export of fresh fruit unless the intending exporter complies with certain prescribed conditions.

Regulation 6 provides that fruit intended for export must be prepared and packed in an export establishment which may be registered as such provided the Department is satisfied that it is constructed, equipped and operated in an efficient and hygienic manner.

After preparation and packing the fruit is delivered to a place appointed by the Secretary for the inspection of fresh fruit for export. The Secretary is empowered by regulation 14(2.) to attach to the appointment any restriction or condition which he may deem necessary. The Department has stipulated in all cases that the building and equipment should be of a satisfactory standard and that suitable accommodation and facilities should be provided for fruit inspectors.

A wharf, however, is approved as a place appointed for the inspection of fresh fruit by virtue of the definition of the term ‘appointed place’ and it appears that in view of this automatic approval, the Department cannot insist on special facilities being provided.

In the past, wharf owners have provided accommodation for the inspection of fresh fruit awaiting shipment although a certain amount of congestion has been evident on account of the shortage of wharf sheds. The shortage of space has been aggravated in Hobart by the burning of one of the main piers and the condemnation and dismantling of two more; as a result inspections have to be carried out in the open in a number of instances. I am advised also that the Fremantle Harbour Trust has refused inspection facilities in the wharf sheds at Fremantle.

Section 19 of the Customs Act provides that the wharf owner shall provide ‘such shed accommodation for the protection of goods as the Minister may, in writing, declare to be requisite’.

I should be glad if you would advise me whether this can be read to include accommodation for the inspection of fresh fruits intended for export.

(2)  Section 19 of the Act is as follows:

Every wharf owner and aerodrome owner shall provide to the satisfaction of the Collector suitable office accommodation on his wharf or at his aerodrome for the exclusive use of the officer employed at the wharf or aerodrome also such shed accommodation for the protection of goods as the Minister may in writing declare to be requisite.

(3)  The goods for the protection of which accommodation is to be provided are not specified. In the notes on section 19 in Wolleston’s Customs Law of Australia, however, it is stated that ‘All wharf owners are also under an obligation (which can be duly enforced) to provide such sheds as may be necessary for the due protection of goods under the control of the Customs.’ I agree with this note.

(4)  Section 30 of the Act specifies when goods become subject to the control of the Customs and sub-section (d) thereof is in the following terms:

30. Goods shall be subject to the control of the Customs:

(d) As to all goods for export the exportation of which is subject to compliance with any condition or restriction under any Act or regulation—from the time the goods are made or prepared in or are brought into any prescribed place for export, until their exportation to parts beyond the seas.

(5)  It is to be noted that goods for export, the exportation of which is subject to compliance with any condition or restriction under any Act or regulation, become subject to the control of the Customs when they are brought into any prescribed place for export. Power to make regulations prohibiting the exportation of goods which do not conform to the prescribed conditions as to purity, soundness or freedom from disease is contained in section 112 of the Customs Act and these conditions have been prescribed by the Exports (Fresh Fruit) Regulations. Relevant provisions of these regulations are as follows:

14. (1) Upon the application of any person engaged in the preparation of fresh fruit for export, the Secretary may make available the services of an officer to supervise the preparation of the fruit.

15. (1) The Secretary may by writing under his hand appoint any place where fresh fruit intended for export may be inspected and examined.

16. All fresh fruit intended for export shall be sent to an appointed place in sufficient time before shipment to enable an officer to inspect it.

20. (1) Where an officer has examined any fresh fruit intended for export and he is satisfied that the whole or part thereof is—

(a) marked in the prescribed manner with the prescribed trade description, and

(b) complies with the conditions and restrictions applicable under these Regulations in respect thereof

he shall sign the certificate at the foot of the notice … and the exporter shall be entitled to receive an export permit.

(2) When the fruit is brought to a wharf for shipment, the exporter shall deliver the export permit to the officer of customs on duty at the ship by which the fruit is to be exported.

(6)  The first point for consideration appears to me to be whether the word ‘protection’ in the phrase ‘for the protection of goods’ is capable of being read as including ‘inspection’. I think the intention of section 19 is that the accommodation should be for the protection of the goods for Customs purposes. Such purposes would, in my opinion, include the purpose of inspecting the goods with a view to seeing whether they were fit for exportation. In view of that conclusion, the question upon which advice is sought resolves itself into whether fresh fruit brought to a wharf for inspection preparatory to export is brought into a prescribed placed for export within the meaning of section 30 of the Act.

(7)  Regulation 23 of the Customs Regulations is as follows:

23. The following places shall be prescribed places for the purposes of paragraph (d) of section thirty of the Customs Act 1901–1947:

Wharfs and aerodromes appointed in pursuance of section fifteen of the Customs Act 1901–1947; and

Places appointed, in pursuance of any regulations under the Customs Act 1901–1947 and the Commerce (Trade Descriptions) Act 1905–1933, to be places where goods intended for export may be inspected or examined.

Regulation 4 of the Exports (Fresh Fruit) Regulations defines ‘appointed place’ as meaning a place appointed under regulation 15 to be a place where fresh fruit which is intended for export may be inspected and examined, and as including ‘any wharf at which fresh fruit is to be shipped’.

(8)  I am of opinion that if fresh fruit is brought to a wharf, or any other ‘prescribed place’, for inspection with a view to obtaining an export permit it is brought there ‘for export’ within the meaning of section 30(d). Accordingly, fruit intended for export brought to a wharf for inspection is in a prescribed place for export and consequently is under Customs control. It follows, I think, that the wharf owner is under an obligation to provide as required by the Minister shed accommodation for the inspection of the fruit.

[Vol. 38, p. 323]